David O'Such v. Warden, State of Connecticut (2010)

MEMORANDUM OF DECISION

On January 28, 2008, petitioner filed a pro se petition for a Writ of Habeas Corpus.   On August 25, 2009, through counsel, said petition was amended.   On August 17, 2010, at the commencement of trial, counsel for the petitioner orally moved to amend the petition and said request was granted.   The petitioner alleges ineffective assistance of habeas counsel.

Finding of Facts

On December 5, 2000, after a jury trial, the petitioner was convicted of five counts of burglary in the third degree in violation of Conn. Gen.Stat. § 53a-103.   On January 30, 2001, the court, (Nigro, J.), sentenced the petitioner to be committed to the custody of the Commissioner of Correction to a period of four years, to run consecutively with each other, for a total effective sentence of twenty years to serve.   The petitioner appealed his conviction, and on January 28, 2003, the conviction was upheld.¹  The petitioner sought certification to the Connecticut Supreme Court and the request was denied.²

The offenses for which the petitioner was convicted occurred in Stamford and Darien during the period of September-November 1999.   With some collaboration between the Stamford and Darien Police Departments, Mr. Andre Martinez became a suspect.   The Stamford police secured and executed a search warrant for Martinez' mother's residence where they recovered some of the items stolen from the burglaries.   Martinez was arrested.

While in custody, Martinez gave a written statement implicating himself and the petitioner.   The Stamford police obtained an arrest warrant for the petitioner and on December 4, 1999, he was arrested.   The petitioner was advised of his rights and Sergeant diSpagna of the Stamford Police Department and Detective Ray Osborne of the Darien Police Department interviewed the petitioner.   The interview was tape recorded and a transcript thereof was introduced as an exhibit at the underlying criminal trial and at the habeas trial.   During the interview, petitioner implicated himself in the five burglaries for which he had been arrested.

After the petitioner was convicted of all five charges, the matter was continued for a presentence investigation report, (hereinafter “PSI”).   The PSI was prepared by Probation Officer Bobbie Spielman.   The petitioner first claims that the Probation Officer never met with him to prepare the PSI. The petitioner further claims that the PSI was inaccurate.   The PSI states, inter alia, that the petitioner did not have a relationship with his father and only hears from his mother on a limited basis, that the petitioner had four prior substance abuse treatments, and that during a period of incarceration in 1992, he was affiliated with a gang.   The petitioner disputes these statements.

On September 3, 2001, the petitioner filed a Petition for Writ of Habeas Corpus alleging ineffective assistance of trial counsel.   On November 7, 2006, the court, (Swords, J.), after a contested hearing, denied the petition.   The petitioner was represented by Attorney Damon Kirschbaum at the habeas trial.

The petitioner now alleges that Attorney Kirschbaum rendered ineffective assistance at the habeas trial.   Specifically, the petitioner claims that his habeas attorney failed to:  call the trial attorney to the stand or at least to depose him;  call the author of the PSI to confirm that the author never met with the petitioner prior to filing an inaccurate PSI;  call anyone from the Department of Corrections that could have authenticated letters supporting the petitioner's claim that the author of the PSI and the petitioner never met;  submit a written memorandum of law explaining to the court why the original habeas should have been granted;  claim that one of the issues against trial counsel was that trial counsel failed to object to the joinder of petitioner's cases at trial;  claim that trial counsel never objected to the introduction of evidence that the petitioner was a heavy crack-cocaine user and was once part of a gang;  claim that trial counsel failed to call as a witness the police officer responsible for “booking” the petitioner;  and claim that trial counsel failed to object to evidence at trial that was irrelevant to the petitioner and which pointed to, Andre Martinez as the perpetrator of the crimes.

Discussion

“[A] person convicted of a crime is entitled to seek a writ of habeas corpus on the ground that his attorney in his prior habeas corpus proceeding rendered ineffective assistance.”  Anderson v. Commissioner of Correction, 114 Conn.App. 778, 795, 971 A.2d 766, cert. denied, 293 Conn. 915, 979 A.2d 488 (2009).  “To succeed on a claim of ineffective assistance of counsel, a habeas petitioner must satisfy the two-pronged test articulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).   Strickland, requires that a petitioner establish that (1) counsel's representation fell below an objective standard of reasonableness, and (2) counsel's deficient performance prejudiced the defense because there was a reasonable probability that the outcome of the proceedings would have been different had it not been for the deficient performance.  Johnson v. Commissioner of Correction, 285 Conn. 556, 575, 941 A.2d 248 (2008).   The first prong is satisfied by proving that counsel made errors so serious that he was not functioning as the ‘counsel’ guaranteed by the sixth amendment.   The second prong is satisfied if it is demonstrated that there exists a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.”  Russell v. Commissioner of Correction, 49 Conn.App. 52, 53, 712 A.2d 978, cert. denied, 247 Conn. 916, 722 A.2d 807 (1998), cert. denied sub nom.  Russell v. Armstrong, 525 U.S. 1161, 119 S.Ct. 1073, 143 L.Ed.2d 76 (1999).   The claim will succeed only if both prongs are satisfied.   It is well settled that [a] reviewing court can find against a petitioner on either ground, whichever is easier.”  (Citations omitted;  internal quotation marks omitted.)  Small v. Commissioner of Correction, 286 Conn. 707, 712-13, 946 A.2d 1203, cert. denied, 129 S.Ct. 481, 172 L.Ed.2d 336 (2008).

“[When] applied to a claim of ineffective assistance of prior habeas counsel, the Strickland standard requires the petitioner to demonstrate that his prior habeas counsel's performance was ineffective and that this ineffectiveness prejudiced the petitioner's prior habeas proceeding ․ [T]he petitioner will have to prove that ․ the prior habeas counsel, in presenting this claim, was ineffective and that effective representation by habeas counsel establishes a reasonable probability that the habeas court would have found that he was entitled to reversal of the conviction and a new trial ․ Therefore, as explained by our Supreme Court in Lozada v. Warden, 223 Conn. 834, 613 A.2d 818 (1992), a petitioner claiming ineffective assistance of habeas counsel on the basis of ineffective assistance of trial counsel must essentially satisfy Strickland twice:  he must prove both (1) that his appointed habeas counsel was ineffective, and (2) that his trial counsel was ineffective.”  (Citations omitted;  internal quotation marks omitted.)   Lapointe v. Commissioner of Correction, 113 Conn.App. 378, 394, 966 A.2d 780 (2009).

For an ineffective assistance claim, “the performance inquiry must be whether counsel's assistance was reasonable considering all the circumstances.”   Johnson v. Commissioner of Corrections, 285 Conn. 556, 577, 941 A.2d 248 (2008).  “Judicial scrutiny of counsel's performance must be highly deferential.   It is all too tempting for a [petitioner] to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful.   To conclude that a particular act or omission of counsel was reasonable ․ a fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time.   Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance;  that is, the [petitioner] must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy ․ There are countless ways to provide effective assistance in any given case.”  (Citations omitted;  internal quotation marks omitted.)   Lapointe v. Commissioner of Correction, 113 Conn.App. 378, 394, 966 A.2d 780 (2009).

Petitioner's first claim of ineffective assistance of counsel is that Attorney Kirschbaum failed to call his trial attorney, Attorney Hess, to the stand or at least to depose him.   Attorney Kirschbaum testified that he tried looking for Attorney Hess but could not locate him.   Moreover, Attorney Kirschbaum testified that it was his opinion that Attorney Hess was not necessary because the standard for determining prior counsel's performance is an objective one.   According to Attorney Kirschbaum, calling prior counsel to testify in a habeas trial is often times damaging because if there is a reasonable explanation for an attorney's actions, or lack thereof, they will give it.   Attorney Kirschbaum's strategy is reasonable.   Even if Attorney Kirschbaum's strategy is deficient, the petitioner has not shown that there is a reasonable probability that, but for counsel's error, the result of the proceeding would have been different.

Petitioner next claims that Attorney Kirschbaum was ineffective in that he did not call to testify the author of the PSI to confirm that she never met with the petitioner prior to filling the PSI. Moreover, petitioner claims that Attorney Kirschbaum failed to call anyone from the Department of Correction that could have authenticated letters supporting the petitioner's claim that the probation officer never met with the petitioner.   In essence, the petitioner claims that the PSI contained inaccurate information and that Attorney Kirschbaum should have contested it.

Attorney Kirschbaum did in fact raise the issue of the inaccurate PSI. Attorney Kirschbaum did subpoena the author of the PSI to testify at the habeas trial.   He chose not to call the Probation Officer to testify.   Certainly, it is within Attorney Kirschbaum's sound trial strategy discretion to call a witness or not to call a witness after he has learned what the witness would say on the stand.

The claim that Attorney Kirschbaum's representation of the petitioner was ineffective because Attorney Kirschbaum failed to call members of the Department of Corrections to authenticate certain letters is likewise without merit.   Attorney Kirschbaum reviewed the letters the petitioner claims support his position.   According to Attorney Kirschbaum, the Department of Correction letters did not support the petitioner's ultimate claim that the PSI was incorrect;  therefore, they were not relevant.   Moreover, the letters were hearsay.

Even if Attorney Kirschbaum did call someone from the Department of Corrections to authenticate letters supporting the petitioner's claim, the petitioner cannot show that, but for the deficient performance, there is a reasonable probability that the result of the proceeding would have been different.   As the court, (Sword, J.), stated in its memorandum of decision in the habeas petition, the petitioner must show that the errors in the PSI somehow would have directly affected the sentence he received.   The court found that, it was “extremely unlikely that the errors identified in the PSI would have had any bearing or impact on the sentence imposed by the court.   Notably in its remarks justifying the length of the sentence imposed, the court did not rely upon any of the alleged errors in the PSI, but rather cited petitioner's lengthy criminal history, his decision to go to trial and the nature of the present charges.”   The court found that the petitioner failed to prove how, if at all, any errors in the PSI influenced the sentencing court.  O'Such v. Warden, 2006 WL 3360931, Docket No. TSRCV030004174S (Conn.Super.Ct.;   Nov. 7, 2006) (Swords, J.).   Here, the petitioner has likewise failed to meet his burden.

The Petitioner next claims that Attorney Kirschbaum's representation was ineffective because he did not file a written memorandum of law in support of his petition.   The habeas court did not order a brief to be filed in this matter and the parties did not request the opportunity to file a brief.   In fact, Attorney Kirschbaum felt that given the issues presented at trial, he did not see the need to file a brief.   The petitioner does not articulate what issues of law or facts should have been briefed.   The petitioner does not present any evidence at all on how a memorandum of law would have resulted in a different outcome of his habeas trial.   Therefore, the claim must fail.

The petitioner further claims that trial counsel failed to object to the joinder of petitioner's cases at trial and that habeas counsel did not raise the issue at habeas trial.  “The decision of whether to sever cases is within the discretion of the trial court ․ and will be overturned only if its discretion has been manifestly abused ․ The defendant bears a heavy burden of showing that the denial of severance resulted in substantial injustice and that any resulting prejudice was beyond the curative power of the court's instructions.”  State v. Hilton, 45 Conn.App. 207, 213-14, 694 A.2d 830, cert. denied, 243 Conn. 925, 701 A.2d 659 (1997), cert. denied, 522 U.S. 1134, 118 S.Ct. 1091, 140 L.Ed.2d 147 (1998).

“Substantial prejudice does not necessarily result from a denial of severance even [if the] evidence of one offense would not have been admissible at a separate trial involving the second offense ․ Consolidation under such circumstances, however, may expose the defendant to potential prejudice for three reasons:  First, when several charges have been made against the defendant, the jury may consider that a person charged with doing so many things is a bad [person] who must have done something, and may cumulate evidence against him ․ Second, the jury may have used the evidence of one case to convict the defendant in another case even though that evidence would have been inadmissible at a separate trial ․ [Third], joinder of cases that are factually similar but legally unconnected ․ present the ․ danger that a defendant will be subjected to the omnipresent risk ․ that although so much [of the evidence] as would be admissible upon any one of the charges might not [persuade the jury] of the accused's guilt, the sum of it will convince them as to all ․

“The court's discretion regarding joinder, however, is not unlimited;  rather, that discretion must be exercised in a manner consistent with the defendant's right to a fair trial.   Consequently, we have identified several factors that a trial court should consider in deciding whether a severance may be necessary to avoid undue prejudice resulting from consolidation of multiple charges for trial.   These factors include:  (1) whether the charges involved discrete, easily distinguishable factual scenarios;  (2) whether the crimes were of a violent nature or concerned brutal or shocking conduct on the defendant's part;  and (3) the duration and complexity of the trial ․ If any or all of these factors are present, a reviewing court must decide whether the trial court's jury instructions cured any prejudice that might have occurred.”   (Citation omitted;  internal quotations marks omitted.)  State v. Davis, 286 Conn. 17, 28-29, 942 A.2d 373 (2008).

At trial, Attorney Kirschbaum testified that he considered the issue of joinder as a potential claim.   He acknowledged the high burden of showing unfair prejudice.   In reviewing the matter he felt that, in this case, there was no unfair prejudice given that there was a tape recorded confession of the burglaries.   In this particular case, there may have actually been a good reason not to sever the matters.   Given the clear presumption of joiner, the petitioner has not proven that, but for Attorney Kirschbaum's failure to raise the issue of joinder at his habeas trial, there would have been a reasonable probability that the cases would not have been joined for trial.   Even if the cases were severed, the petitioner has not shown that he would have fared any better at separate trials.

Petitioner further claims that Attorney Kirschbaum did not raise at the habeas trial the fact that trial counsel never objected to the introduction of evidence of his heavy crack-cocaine use and affiliation with a gang.   Attorney Kirschbaum testified that he considered raising the issues at the habeas trial.   He, however, decided not to do so for several reasons.   First, Attorney Kirschbaum decided that the claims were weak and, in is his professional opinion, it is best to bring those claims at a habeas trial with the greater likelihood of success.   Second, the petitioner did admit that he was an active crack-cocaine user at the time of his arrest.   The court finds Attorney Kirschbaum's strategy was reasonable considering all of the circumstances.   Even if, however, Attorney Kirschbaum's performance was deficient, the petitioner has not demonstrated that, but for habeas counsel's deficiency, the result of the proceeding would have been different.

Next, the petitioner claims that Attorney Kirschbaum failed to claim that trial counsel failed to call to the stand during the criminal trial the officer responsible for booking the petitioner.   There is no evidence as to what the booking officer would have said, if anything, and how the booking officer's testimony would have helped the petitioner's claim.   The claim must, therefore, fail.

Lastly, the petitioner claims that Attorney Kirschbaum failed to claim that trial counsel failed to object to evidence irrelevant to petitioner's guilt and pointing to Mr. Martinez as the perpetrator of the crime.   There was no evidence presented at the habeas trial as to what evidence trial counsel failed to object to.   Martinez was a co-defendant with his own charges pending at the time of petitioner's trial.   Martinez did provide a written confession implicating the petitioner prior to the petitioner's arrest.   Even if, however, Attorney Kirschbaum failed to raise the claim at the habeas trial, there is no showing at all that the outcome of the trial would have been different.

Conclusion

The petitioner has failed to establish that habeas counsel's performance was ineffective.   Moreover, the petitioner has failed to prove that even if habeas counsel was ineffective, the inadequate performance prejudiced the petitioner's habeas proceeding.

Based on the forgoing, the petition for a writ of habeas corpus is denied.   Judgment may enter in favor of the respondent.   Should the petitioner wish to appeal, counsel shall submit a judgment file to the clerk within thirty days.

Suarez, J.

FOOTNOTES

FN1. State v. O'Such, 74 Conn.App. 906, 815 A.2d 296 (2003)..  FN1. State v. O'Such, 74 Conn.App. 906, 815 A.2d 296 (2003).

FN2. State v. O'Such, 263 Conn. 902, 819 A.2d 838 (2003)..  FN2. State v. O'Such, 263 Conn. 902, 819 A.2d 838 (2003).

Suarez, José A., J.